Tom Retzlaff v. Belinda Mendieta-Morales, 356 S.W.3d 676

In 2000, Retzlaff and Morales entered an agreed judgment barring harassing or threatening communications and prohibiting Morales from making false reports to government agencies about Retzlaff.
In 2008, Retzlaff sued Morales for breach of contract and defamation in cause 339578, alleging she violated the agreed judgment.
In July 2008, the trial court entered a default judgment awarding Retzlaff $100,000 against Morales.
In December 2008, Morales filed a petition for bill of review in a new cause number, 345077, to overturn the default judgment.
In December 2009, the San Antonio Court of Appeals dismissed Morales’s appeal from the bill of review as interlocutory because it did not adjudicate the merits of the underlying suit.
On March 9, 2010, Morales filed a no-evidence summary judgment motion in the original cause 339578; a hearing was set for April 9, 2010.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether no-evidence MSJ was proper	Retzlaff argues bill-of-review issues were improperly pursued in a different case number, so no-evidence MSJ should fail on procedure.	Morales contends bill of review was properly filed in 345077 and supports MSJ on the merits by identifying lack of evidence.	No-evidence MSJ proper; Morales did not need to prove absence of evidence, only identify missing elements.
Whether the continuance to obtain more discovery was properly denied	Retzlaff needed more time to obtain evidence after the mandate.	Morales’s motion was timely, and Retzlaff did not file an affidavit or specify needed discovery.	Denial of continuance was not an abuse of discretion.
Whether the trial court erred by striking Retzlaff’s summary judgment response	Retzlaff asserts his response and evidence were timely and should have been considered.	Objections to the affidavit and police report were sustained; response was struck as untimely.	Court’s striking of the challenged evidence left no material evidence to create a fact issue; no reversal.

Amanda v. Montgomery, 877 S.W.2d 482 (Tex.App.—Houston [1st Dist.] 1994) (petition for bill of review must be filed as a new lawsuit in a different cause number)
Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) (requirements for a bill of review: meritorious defense, impediment by prevention, no fault by movant)
Hartford Underwriters Ins. v. Mills, 110 S.W.3d 588 (Tex.App.—Fort Worth 2003) (records rules on appellate review of proceedings across related cases)
Foust v. Estate of Walters ex rel. Walters, 21 S.W.3d 495 (Tex.App.—San Antonio 2000) (records-evidence rules; appellate review of missing documents)
Little v. Needham, 236 S.W.3d 328 (Tex.App.—Houston [1st Dist.] 2007) (appellate record completeness requirement)
Nowak v. DAS Inv. Corp., 110 S.W.3d 677 (Tex.App.—Houston [14th Dist.] 2003) (no-evidence summary judgment requires movant to identify lacking elements; nonmovant need not introduce evidence for all elements)
Martinez v. Leeds, 218 S.W.3d 845 (Tex.App.—El Paso 2007) (affidavits and verified motions required for continuance)
Rankin v. Union Pac. R. Co., 319 S.W.3d 58 (Tex.App.—San Antonio 2010) (discusses continuance standards and discovery timing)